Financial Power of Attorney

DURABLE FINANCIAL POWER OF ATTORNEY

(South Dakota – SD UPOAA-Compliant)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Appointment & Effectiveness
4. Grant of Authority
5. Authority to Make Gifts
6. Special Instructions (Optional)
7. Successor & Co-Agents
8. Nomination of Guardian or Conservator
9. Fiduciary Duties of Agent
10. Acceptance by Agent
11. Liability; Indemnification; Caps
12. Reliance & Protection of Third Parties
13. Records & Accountings
14. Revocation & Termination
15. Dispute Resolution
16. Miscellaneous Provisions
17. Execution Block – Principal
18. Acknowledgment – Notary Public
19. Agent’s Certification (Optional)

1. DOCUMENT HEADER

This Durable Financial Power of Attorney (this “Power”) is made as of [EFFECTIVE_DATE] (the “Effective Date”) by
[PRINCIPAL_NAME], residing at [PRINCIPAL_ADDRESS] (the “Principal”), in favor of the individual(s) designated below as attorney-in-fact (“Agent” or, if more than one, “Agents”).

Recitals
A. Principal desires to grant authority to manage the Principal’s property and financial affairs.
B. Principal intends this Power to be durable, meaning it shall not be affected by Principal’s subsequent incapacity, pursuant to the SD UPOAA.
C. Consideration is acknowledged by the parties’ mutual promises and the fiduciary duties herein.

2. DEFINITIONS

For purposes of this Power, capitalized terms have the meanings set forth below.

“Agent” means the person(s) identified in Section 3.
“Durable” means effective notwithstanding the Principal’s incapacity.
“Incapacity” means the inability of the Principal to manage property or business affairs as determined under SD UPOAA.
“SD Probate Court” means the circuit court having probate jurisdiction in the county where venue is proper under South Dakota law.
“SD UPOAA” means the Uniform Power of Attorney Act as adopted in South Dakota, as amended.
“Special Instructions” has the meaning given in Section 6.

3. APPOINTMENT & EFFECTIVENESS

3.1 Primary Agent
Principal hereby appoints [AGENT_NAME], of [AGENT_ADDRESS], as Primary Agent.

3.2 Successor Agent(s)
See Section 7 for successors.

3.3 Effectiveness
(a) ☐ Immediately upon execution.
(b) ☐ Springing – effective only upon the Principal’s incapacity, evidenced by a written determination of incapacity signed by:
  (i) ☐ One licensed physician;  (ii) ☐ Two licensed physicians;  (iii) ☐ Other: [DESCRIBE].
Choose one by marking the appropriate box.

3.4 Durable Nature
This Power is intended to be durable in accordance with SD UPOAA.

4. GRANT OF AUTHORITY

4.1 Incorporation of SD UPOAA Default Powers
Except as limited by Section 6, the Agent is granted all authorities enumerated under SD UPOAA, including but not limited to the following categories. The Principal may initial any category to withhold that authority; blank lines convey authority.

4.2 Grant of All Other Lawful Acts
Agent may take any lawful action with respect to Principal’s property that Principal could take personally, subject to the limitations herein.

5. AUTHORITY TO MAKE GIFTS (OPTIONAL)

Unless limited in Section 6:
a. Annual Limit: Agent may make gifts in any calendar year not exceeding the federal gift-tax annual exclusion per donee.
b. Split-Gifting: Agent may consent to gift-splitting with the Principal’s spouse.
c. Scope: Gifts may be made to individuals or § 501(c)(3) organizations.

6. SPECIAL INSTRUCTIONS (OPTIONAL)

[Insert any specific limitations, expansions, or directions, e.g., prohibiting the sale of the family homestead, authorizing self-dealing under defined parameters, etc.]

7. SUCCESSOR & CO-AGENTS

7.1 Successor Agent(s)
If the Primary Agent is unable or unwilling to serve, the Principal appoints:
(a) [SUCCESSOR_AGENT_1]; then
(b) [SUCCESSOR_AGENT_2].

7.2 Co-Agents
☐ Co-Agents to act:  (i) ☐ Jointly  (ii) ☐ Independently.

7.3 Resignation of Agent
An Agent may resign by delivering written notice to the Principal (if capacitated), any co-agent, and any successor agent.

8. NOMINATION OF GUARDIAN OR CONSERVATOR (IF NEEDED)

In the event a court determines that the appointment of a guardian or conservator for the Principal becomes necessary, the Principal nominates the then-acting Agent to serve in that capacity.

9. FIDUCIARY DUTIES OF AGENT

The Agent shall:
a. Act in good faith and within the scope of authority granted.
b. Act loyally for the Principal’s benefit; avoid conflicts of interest.
c. Keep records of all receipts, disbursements, and transactions.
d. Disclose receipts, disbursements, or transactions upon reasonable request by the Principal, a court, or an authorized representative.
e. Attempt to preserve the Principal’s estate plan to the extent actually known to the Agent.

10. ACCEPTANCE BY AGENT

By signing Section 19, the Agent:
i. Accepts appointment;
ii. Acknowledges the fiduciary duties imposed by South Dakota law and this Power; and
iii. Submits personally to the jurisdiction of the SD Probate Court for any proceeding relating to this Power.

11. LIABILITY; INDEMNIFICATION; CAPS

11.1 Standard of Care
The Agent shall not be liable for acts or omissions made in good faith, in compliance with this Power and SD UPOAA.

11.2 Indemnification
The Principal agrees to indemnify and hold harmless the Agent from any third-party claims arising out of the Agent’s good-faith exercise of authority, except to the extent such claims result from the Agent’s breach of fiduciary duty, willful misconduct, or gross negligence.

11.3 Liability Cap
To the fullest extent permitted by law, any monetary liability of the Agent to the Principal shall be limited to the total value of assets under the Agent’s management at the time the cause of action accrues.

12. RELIANCE & PROTECTION OF THIRD PARTIES

12.1 Full Force
A person who, in good faith, accepts an acknowledged copy of this Power may rely upon the authority granted to the Agent.

12.2 Certification
Third parties may request, and the Agent shall furnish, a certification pursuant to SD UPOAA § [___], or an opinion of counsel at the Principal’s expense.

12.3 No Duty of Inquiry
No party dealing with the Agent need inquire into the propriety of any action taken.

13. RECORDS & ACCOUNTINGS

13.1 Maintenance of Records
The Agent shall maintain contemporaneous records, including receipts, disbursements, investments, and other transactions undertaken for the Principal.

13.2 Periodic Accountings
Upon written demand by the Principal, a guardian, a conservator, or order of the SD Probate Court, the Agent shall provide an accounting within [30] days.

14. REVOCATION & TERMINATION

14.1 Revocation by Principal
The Principal may revoke this Power in whole or in part by:
(a) Executing a subsequent written revocation; and
(b) Delivering actual notice of revocation to the Agent.

14.2 Automatic Termination
This Power terminates upon the earliest of:
i. Principal’s death;
ii. Revocation under § 14.1;
iii. Completion of its purpose;
iv. Resignation, death, or incapacity of the sole Agent without a successor.

14.3 Effect on Prior Powers
This instrument ☐ revokes  ☐ does not revoke all prior powers of attorney executed by the Principal. (Select one.)

15. DISPUTE RESOLUTION

15.1 Governing Law
This Power and all disputes hereunder shall be governed by the laws of the State of South Dakota, without regard to conflict-of-law rules.

15.2 Forum Selection
Exclusive venue shall lie in the SD Probate Court. The parties consent to its personal jurisdiction.

15.3 Limited Arbitration
Any dispute between the Principal (or the Principal’s representative) and the Agent solely concerning the Agent’s accounting may (but need not) be submitted to binding arbitration under the South Dakota Uniform Arbitration Act, by written agreement of the parties after the dispute arises.

15.4 Jury Trial Waiver
☐ If permitted by applicable law, the parties knowingly waive trial by jury in any proceeding arising from this Power, except to the extent such waiver is prohibited by SD UPOAA or other non-waivable law.

15.5 Injunctive Relief
Nothing herein limits the right of the Principal or an interested person to seek injunctive relief or other equitable remedies for breach of fiduciary duty.

16. MISCELLANEOUS PROVISIONS

16.1 Amendments
This Power may be amended only by a writing signed by the Principal and acknowledged before a notary public.

16.2 Severability
If any provision is held invalid or unenforceable, the remainder shall be given effect to the maximum extent permitted.

16.3 Electronic Signatures & Counterparts
This Power may be executed in counterparts and by electronic signature, each of which shall be deemed an original.

16.4 Copies
Photographic or electronically transmitted copies of this Power shall have the same effect as the original.

17. EXECUTION BLOCK – PRINCIPAL

IN WITNESS WHEREOF, the Principal has executed this Durable Financial Power of Attorney as of the Effective Date.

_______________________________
[PRINCIPAL_NAME], Principal

18. ACKNOWLEDGMENT – NOTARY PUBLIC

[State-required South Dakota statutory notarial certificate follows.]

State of South Dakota )
County of _______________ ) ss.

On this ____ day of __________, 20__, before me, ______________________, a Notary Public, personally appeared [PRINCIPAL_NAME], known to me or satisfactorily proven to be the person whose name is subscribed to this instrument, and acknowledged that (s)he executed the same for the purposes therein contained.

Witness my hand and official seal.

_______________________________
Notary Public, South Dakota
My Commission Expires: __________

19. AGENT’S CERTIFICATION (OPTIONAL BUT RECOMMENDED)

I, [AGENT_NAME], hereby accept appointment as Agent under the foregoing Durable Financial Power of Attorney, and certify that to the best of my knowledge:

1. The Principal is alive and, to my knowledge, has not revoked this Power.
2. This Power is in full force and effect.
3. I agree to act in accordance with the fiduciary duties imposed by South Dakota law.

_______________________________
[AGENT_NAME], Agent
Date: _______________________